Merchant Bank of Central Africa v Michael Manzini & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/34/22
HELD AT HARARE ON 28TH JANUARY, 2022
CASE
JUDGMENT NO. LC/H/34/2022
CASE NO. LC/H/186/13
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/34/22

HELD AT HARARE ON 28TH JANUARY, 2022               CASE NO.LC/H/186/13

AND 11TH FEBRUARY, 2022

In the matter between:-

MERCHANT BANK OF CENTRAL AFRICA			APPLICANT

AND

MICHAEL MANZINI						1st RESPONDENT

AND

VIVIAN MANTIBIZA 						2ND RESPONDENT

AND

ESTATE LATE BRIAN KASHIRI					3RD RESPONDENT

AND

ARBITRATOR KARE N.O.					4TH RESPONDENT

Before the Honourable Makamure, J.

For the Applicant	:		Mr. O. Kondongwe (Legal Practitioner)

For the 1st-3rd Respondents:	Mr. C. Tatira (Legal Practitioner)

For the 4th Respondent:		No Appearance

MAKAMURE J.

This is an old matter, an application for review.  It is undesirable that a matter should be in the dispute resolution for more than nine (9) months let alone nine years.  It would appear that the 1st – 3rd respondents or their legal practitioners have contributed to the delay.  This will be demonstrated below. It is a cause for concern.  It is hoped that matters are resolved as expeditiously as possible, not only because the Act says so or because “justice delayed is justice denied”, but because labour issues are by their very nature are “bread and butter” issues and therefore urgent.

This matter was set down to be heard on 11 January, 2022.  On that date, the 1st-3rd respondents’ legal practitioners had no clue as to what they wanted done.  (For the purpose of this judgment, 1st – 3rd respondent will be referred to as “respondents”).  Admittedly there is another record where the parties are still to appear before this Court.  However the fact that there is another different matter involving the same parties is not an excuse for being unprepared for court on the due date.

On 27th January 2022, more than two weeks later, the parties appeared.  A preliminary point was raised for the first time.  The preliminary issue is that the applicant used the wrong form contrary to what was required by the then Labour Court Rules Statutory Instrument 59 of 2006.  The then Rules required that ‘Form LC 4’ be used in an application for Review.

Mr. Tatira who appeared for the 1st to 3rd respondents argued that the form used did not show the date when the application before this court was made and when the determination sought to be reviewed was made.  In support of the averments Mr. Tatira referred the Court to RUFASHA v BINDURA UNIVERSITY OF TECHNOLOGY HH 15/2016.  (Unfortunately the court could not find this authority).  Mr. Tatira further averred that the grounds for review should in terms of the instructions which appear on Form LC4 not have been more than two pages long.  The grounds in casu covered some thirteen (13) pages.  The grounds in question Mr. Tatira averred, are lengthy and not concise.  They, Mr. Tatira argued, fell short of the requirements of the Rules of this Court.  It was submitted on behalf of the respondents that under the circumstances the application for review is fatally defective and cannot be related to.  Further the said grounds referred to both an appeal and an application for review which is alien to the Rules argued Mr. Tatira.

In response Mr. Kondongwe who appeared for the applicant drew the court’s attention to the case of DALNY MINE v BANDA 1999 (1) ZLR 220 where the Supreme Court held that as a general rule it is undesirable for labour matters to be decided on technicalities.  Mr. Kondongwe argued that it was in the interests of justice that the merits of the case be argued and determined.  This Mr. Kondongwe argued was in view of the fact that the matter has been outstanding for more that ten (10) years.  Mr. Kondongwe also referred to Rule 12 of the then S.I. 59/06 which gave room for departure from rules and the strict adherence to rules.  Mr. Kondongwe also submitted that what is before the court is an application for review and not an appeal.  In dealing with a notice of appeal the authority of the ‘Avcalos’ case would be ideal.  The case says that non-compliance with the rules in an appeal is fatal and makes such an appeal a nullity.  An appeal and review are different.  With respect to the form, Mr. Kondongwe argued that the appropriate form was used.  The form provided boxes or spaces to be ticked.  The said boxes were duly ticked, Mr. Kondongwe submitted.  It was Mr. Kondongwe’s submission that there was compliance.  As to the length of the grounds, the form LC4 stipulated that if the space provided for the grounds was inadequate, a separate document could be attached.  Mr. Kondongwe also submitted that there was no indication that the respondents suffered any prejudice as a result of the way the application is presented.  In support of the question of prejudice suffered by the other party the Court was referred to the case of JOCKEY CLUB OF SOUTH AFRICA v FELDMAN 1942 AD at 340.

In response Mr. Tatira submitted that while it was in the interests of justice for the merits of the case to be heard, the Court cannot condone substantial irregularities.  Mr. Tatira persisted with the submission that there was no application for review before the court because what was placed before the court was fatally defective.  Reference was made to ZIMPLATS v MARKO PHUTI SC21/16 where the Supreme Court stated that the court must act within the confines of the law.  Mr. Tatira applied for the matter to be struck off with costs.

It is trite that a point of law can be raised at any time during the proceedings.  In the present case the respondents take issue with the form used by the applicant; the length of the grounds for review and whether or not such grounds are clear.

With respect to the form, to be used, it is trite that parties have an obligation to follow or to adhere to the prescribed forms.  It is also trite that the principle in DALNY MINE v BANDA 1999 (1) ZLR 220 is the guiding principle where procedural irregularities are the issue.  The Supreme Court in DALNY MINE v BANDA (above) stated that:

“As a general rule it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities.  By this, I do not mean that such irregularities should be ignored.  I mean that the procedural irregularities should be put right.  This can be done in one of two ways:

by remitting the matter for a hearing de novo and in a procedurally correct manner;

by the Tribunal hearing the evidence de novo.”

In the present case the averment is that here was non-compliance with the prescribed form.  The prescribed form is “Form L.C. 4.”  Page 1 of the record shows that the Form is “Form L.C. 4” which appears on the top right hand side of the form.  The page contains explanatory notes.  The next page of the form which appears at page 2 of the record is titled “DETAILS OF THE APPLICATION”.  It provides boxes where the applicant has to indicate what they want done by ticking the relevant box with respect to the grounds. These are listed below:

The first box refers to

“The labour officer or other authority concerned in the proceedings which I seek review lacked jurisdiction to conduct them.”

This first box was ticked.

The second box referred to

“The labour officer or other authority concerned in the proceedings for which I seek review was an interested party to the proceedings or was motivated by bias, malice or corruption.’

This box was not ticked.

The third box referred to

“There was gross irregularity in the proceedings or the decision for which I seek review”.

This box was ticked.

The form then provides for dates when the proceedings were concluded and decision made.  The applicant did not indicate when the proceedings were concluded nor was it indicated as to  when the decision was made.  Thereafter the applicant is instructed to state the “brief” facts and grounds on which the application for review is based with a further direction that should the space provided be inadequate, ”no more than two pages” containing details of the grounds for review may be attached to the form.  To this instruction the applicant indicated “See attached”.  It is common cause that what was attached was thirteen pages (and “not more than two pages”).  After, this three more boxes are on the form requiring the relief sought to be obtained from the court as follows:

(1)	“Reverse or set aside the decision, order or action reviewed and, if appropriate, substitute its own decision or order”

(2)	“Refer the matter that is the subject of tis application back to the body, person or authority concerned for further consideration”

(3)	“Payment of legal fees and costs connected with this application.”

There is also space for the applicant to specify any other relief or to have the matter referred to another Arbitrator for a hearing.

The next page of form L.C. 4 which is page 3 of the record pf proceedings shows how the application was served on the other party and proof of such service.  Thereafter there is space for the signature of the person noting the application.  On this page, the proof of service is not indicated.  There is no signature of the person noting the application.  This means that the person who noted the application is not known.  At page 8 of the record appears the “grounds of Appeal and Review” – these cover from page 8 to page 20 – i.e. thirteen (13) pages.  One has to go through the pages in order to identify the grounds for review since the document covers both grounds for review and appeal.

The grounds for review are provided in the Labour Act Section 92EE where the applicant is aggrieved by the lack of jurisdiction of the arbitrator or adjudicating authority; presence of bias on malice by the adjudicating authority and or gross irregularity in the proceeding or the decision of the arbitrator or adjudicating authority.

In the present case the applicant ticked two boxes showing absence of jurisdiction and gross irregularity and then went on to give thirteen pages of facts and grounds.

I find that the applicant was complied with respect to the form used.  What is significant is that there are 13 pages of facts.  Somewhere in the middle of those pages after going through the pages, one finds the grounds for review.  This appears argumentative.  There are numerous authorities on the need for grounds of appeal to be concise and precise.  In JOHN CHIKURA N.O. & ANOTHER v AL SHAM’S GLOBAL BVI LIMITED SC 17/2017 the Supreme Court stated that:

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of ‘grounds of appeal” in order to determine the real issues for determination by the court.  The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal.  That is not so in the instant matter”.

I believe that the grounds for review should also be guided by the same principles (See also YSMIN TACKLAH MAHOMMED v TAWURAYI MARVIN KADIRI SC41/21; KUNONGA v CHURCH OF THE PROVINCE OF CENTRAL AFRICA SC 25/17).

The grounds of review must be concise and precise.  This is lacking in the present matter.

Accordingly there is merit in the preliminary issue raised.

It is accordingly upheld.

In the result it is ordered that:

The application for review be and is hereby struck off the roll.

DUBE, MANIKAI & HWACHA – Applicant’s Legal Practitioners

MANGENYI LAW CHAMBERS – 1st-3rd Respondents’ legal practitioners